Key Facts on the Unborn Victims of Violence Act

Published by the National Right to Life Committee

Updated May 6, 2003

For more information on unborn victims of violence, visit the NRLC website at http://www.nrlc.org/Unborn_victims/index.html.

* The Unborn Victims of Violence Act is a proposed federal law currently under consideration in Congress. This bill, which is supported by President Bush, is sponsored in the Senate by Senator Mike DeWine (R-Ohio) (S. 1019), and in the House of Representatives by Congresswoman Melissa Hart (R-Pa.) (H.R. 1997). This legislation was approved by the House in 1999 and again in 2001, but it has never been acted on by the Senate.

* The Unborn Victims of Violence Act recognizes that when a criminal attacks a pregnant woman, and injures or kills her unborn child, he has claimed two human victims. The bill would establish that if an unborn child is injured or killed during the commission of an already-defined federal crime of violence, then the assailant may be charged with a second offense on behalf of the second victim, the unborn child - - the exact charge depending on the degree of harm done to the child and other factors. The bill would apply this two-victim principle to 68 existing federal laws dealing with acts of violence. These laws affect federal geographical jurisdictions, the military justice system, protection of federal officials, and specific acts defined by law as federal crimes (such as certain terrorist bombings).

* In current federal criminal law, an unborn child is not recognized as a victim with respect to violent crimes. Thus, for example, if a criminal beats a woman on a military base, and kills her unborn child, he can be charged only with the battery against the woman, because the unborn child's loss of life is not recognized by the law. This gap in federal law results in grave injustices, some real-world examples of which were described by former Congressman Charles Canady (R-Fl.) at a July 21, 1999, House Judiciary Constitution Subcommittee hearing on the issue. To read Congressman Canady's summary statement, go to: http://nrlc.org/news/1999/NRL899/cana.html.

* The bill explicitly provides that it does not apply to any abortion to which a woman has consented, to any act of the mother herself (legal or illegal), or to any form of medical treatment. Nevertheless, the National Right to Life Committee supports the bill because it achieves other pro-life purposes that are worthwhile in their own right: The protection of unborn children from acts of violence other than abortion, the recognition that unborn children may be victims of such violent criminal acts, and the punishment of those who harm unborn children while engaged in federally prohibited acts of violence.

* As of May 6, 2003, twenty-six (26) states have enacted laws which recognize unborn children as human victims of violent crimes covered by state laws. Fourteen (14) of these states provide this protection throughout the period of in utero development, while the other 12 provide protection during certain specified stages of development. For detailed information on state unborn victims laws, see the NRLC factsheet "State Homicide Laws That Recognize Unborn Victims" at: http://www.nrlc.org/Unborn_victims/Statehomicidelaws092302.html.

* The Unborn Victims of Violence Act would not supersede state unborn victims laws, nor would it impose such a law in a state that has not enacted one. Rather, the bill applies only to unborn children injured or killed during the course of already-defined federal crimes of violence.

* It is well established that unborn victim laws do not conflict with the Supreme Court's pro-abortion decrees (Roe v. Wade, etc.). The 26 state laws mentioned above have had no effect on the practice of legal abortion. Criminal defendants have brought many legal challenges to the state unborn victim laws, based on Roe and other constitutional arguments, but all such challenges have been rejected by state and federal courts. To cite just one example, the Minnesota Supreme Court ruled: "Roe v. Wade . . . does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus." [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)]. For a summary of these court decisions, see: http://www.nrlc.org/Unborn_victims/statechallenges.html.

* Moreover, in the 1989 case of Webster v. Reproductive Health Services, the U.S. Supreme Court refused to invalidate a Missouri statute that declares that "the life of each human being begins at conception," that "unborn children have protectable interests in life, health, and well-being," and that all state laws (including criminal laws) "shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," to the extent permitted by the Constitution and U.S. Supreme Court rulings. A lower court had held that Missouri's law "impermissibl[y]" adopted "a theory of when life begins," but the Supreme Court nullified this ruling, and held that a state is free to enact laws that recognize unborn children, so long as the state does not include restrictions on abortion that Roe forbids.

* Some opponents have objected to the bill's recognition of the "child in utero" as a member of the human family who can be harmed in a crime. Yet, on July 25, 2000, the House passed on a vote of 417-0 a bill that contained the same definition of "child in utero" and that embodied the same basic legal principle. That bill, the Innocent Child Protection Act, said that no state or federal authority may "carry out a sentence of death on a woman while she carries a child in utero. . . .'child in utero' means a member of the species homo sapiens, at any stage of development, who is carried in the womb." To see the bill and the roll call, go to: http://www.nrlc.org/Unborn_victims/InnocentChildUVVAparallel.pdf.

The principle embodied in the Innocent Child Protection Act was obvious. Whatever one's position regarding the morality of capital punishment as such, there is only one rational reason for delaying a lawfully ordered execution of a woman because she is pregnant - - that is, carrying out the execution would take two human lives, including one convicted of no crime. The Unborn Victims of Violence Act would extend that same principle to the rest of the federal criminal code, recognizing that when a criminal attacks a woman, injuring or killing her and injuring or killing her unborn child, he has claimed two victims.

* The Unborn Victims of Violence Act has come under vehement attack from pro-abortion groups such as NARAL, Planned Parenthood, and the ACLU. Even though the bill deals with acts of violence other than abortion, the pro-abortion lobby's ideology apparently compels it to deny the very existence of unborn human beings in any area of the law. Thus, pro-abortion lawmakers have proposed alternative legislation, the "Lofgren substitute amendment," which the House of Representatives rejected in both 1999 and 2001. This "one-victim" proposal did not mention the unborn child (by whatever name), but instead defined as an offense "interruption to the normal course of the pregnancy." This approach would have codified a falsehood - - the notion that there is only one victim in these crimes. In the real world, however, when an unborn child loses her life in a criminal attack, the parents and society mourn the death of a separate individual, rather than viewing it simply as an additional injury to the mother.

* Arguments in favor of the one-victim proposal are internally inconsistent and illogical. Supporters of the one-victim approach insist that when a criminal injures a mother and kills her unborn child, there has been only a compound injury to the mother but no loss of any human life - - yet, the Lofgren Amendment would have imposed a penalty (up to life in prison) commensurate with loss of human life. Also, advocates of the one-victim approach argue that when a criminal assailant kills a pregnant woman, the assailant should receive double punishment: Once for killing the mother and then again for depriving her of her "pregnancy" - - but if there is only one victim, it is difficult to see why this would not be a duplicative criminal charge, since legally speaking a woman who has been murdered cannot herself suffer an additional "loss."

* Some opponents of the bill have charged that the bill would punish harm to the unborn child "utterly ignoring the harm to the pregnant woman." Others have charged that the bill would "separate the mother from her fetus." These objections reflect misunderstandings or misrepresentations of how the bill is structured. In reality, the bill would allow the government to win a conviction for harm to an unborn child only if it first proves that the defendant violated one of 68 enumerated federal laws with respect to the mother.

* Some opponents of the bill have charged that it would allow defendants to be convicted without a showing of intent to do harm. This is false. Under the bill, it is necessary to prove beyond a reasonable doubt that a defendant had intent to do criminal harm, at least towards the mother. If such criminal intent towards the mother is proved, then the defendant also will be held responsible for the harm done to the unborn baby, under the doctrine of "transferred intent." As the House Judiciary Committee explained in its official report on the bill, transferred intent is a well-established principle in the law. (If a man shoots at a woman with intent to kill, and the bullet misses her, passes through a wall, and kills a child whom the shooter did not know was there, he can be convicted of the murder of the child.) As the Minnesota Supreme Court ruled in upholding the Minnesota unborn victims law, "The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude." [State v. Merrill, 450 N.W.2d 318 (Minn. 1990)].

* In order to win a conviction under the bill, it would be necessary for the prosecution to prove beyond a reasonable doubt that a human being (1) already existed, and (2) was "carried in the womb," which would be utterly impossible until after the embryo had implanted in the womb and sent out the chemical signals that announce his or her presence (i.e., after implantation). Moreover, even after the prosecution has met that burden, it must also prove beyond a reasonable doubt that a defendant's criminal conduct caused the death of the child in utero. The mere possibility or even the strong likelihood that a defendant's criminal conduct caused a baby's death would not suffice - - the bill requires proof beyond a reasonable doubt.